United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Linda Sims, a former salesperson for Defendant, Sunovion
Pharmaceuticals, Inc., alleges various claims against
Defendant for discrimination, retaliation, hostile work
environment, constructive discharge, and overtime wage
violations. In her wide-ranging Second Amended Complaint,
Plaintiff brings at least nine charges against Defendant:
• Count 1- Racial discrimination in violation of Title
VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq.;
• Count 2- Sexual discrimination in violation of Title
• Count 3- Age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621-634;
• Count 4- Discrimination based on disability in
violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et
• Count 5- Retaliation for engaging in protected
activity with the Equal Employment Opportunity Commission
(“EEOC”) in violation of Title VII;
• Count 6- Discrimination and creation of a hostile work
environment and constructive discharge in violation of Title
• Count 7- Discrimination based on race, sex, age,
disability, veteran status,  and hostile work environment and
constructive discharge in violation of the District of
Columbia Human Rights Act (“DCHRA”), DC Code
§§ 2-1401 to 2-1411.06;
• Count 8- Failure to pay overtime wages in violation of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201, et seq.; and
• Count 9- Failure to pay overtime wages in violation of
District of Columbia law.
Sec. Am. Compl., ECF No. 21-2, ¶¶ 26-61. Before the
Court is Defendant's  Motion to Dismiss in which
Defendant moves to dismiss each of the counts in
Plaintiff's Second Amended Complaint on various grounds
relating to improper venue, failure to state a claim for
which relief may be granted, and lack of jurisdiction.
consideration of the pleadings, the relevant legal authorities,
and the record for purposes of this motion, the Court GRANTS
IN PART and DENIES IN PART Defendant's Motion:
• As to Counts 1, 3, and 4 in Plaintiff's Second
Amended Complaint, the Court GRANTS Defendant's motion
and DISMISSES Plaintiff's claims for discrimination on
the basis of race, age, and disability insofar as they are
based on employment decisions and actions occurring prior to
January 6, 2016 because those decisions and actions are
• As to Count 2, the Court DISMISSES Plaintiff's
claim for sexual discrimination under Title VII because
Plaintiff failed to exhaust that claim before the EEOC.
• As to Count 6, the Court DISMISSES Plaintiff's
hostile work environment claim insofar as it relies upon
discrimination on the basis of sex as Plaintiff failed to
exhaust her sex discrimination claim. Additionally, the Court
DISMISSES Plaintiff's claim for constructive discharge as
Plaintiff failed to state a claim for which relief may be
• As to Count 7, the Court DISMISSES Plaintiff's
DCHRA claims in full because those claims are barred by the
DCHRA's statute of limitations.
• As to Counts 8 and 9, the Court DISMISSES
Plaintiff's claims for overtime wage violations because
Plaintiff failed to state a claim for which relief may be
Court otherwise DENIES Defendant's Motion to Dismiss.
purposes of the motion before the Court, the Court accepts as
true the well-pled allegations in Plaintiff's Second
Amended Complaint. The Court does “not accept as true,
however, the plaintiff's legal conclusions or inferences
that are unsupported by the facts alleged.” Ralls
Corp. v. Comm. on Foreign Inv. In the U.S., 758 F.3d
296, 315 (D.C. Cir. 2014).
Linda Sims is an African American black female veteran who
was at least 40 years old during the times relevant to her
complaint. Sec. Am. Compl., ECF No. 21-2, ¶ 1. From May
2006 to October, 12016, Plaintiff worked as a specialty
markets salesperson and an institutional salesperson for
Defendant Sunovion Pharmaceuticals, Inc. Id. As a
sales representative, Plaintiff was assigned responsibility
for sales and promotions to medical professionals in
designated territories including the District of Columbia and
Maryland. Id. at ¶ 7.
May 2006 to 2009, Plaintiff alleges that she reached her
employment goals and quotas and regularly received ratings of
“At Expectations” and “Exceeds
Expectations.” Id. at ¶ 8. However, in
2009, Livia Warden, a white female, became Plaintiff's
supervisor. Id. at ¶ 9. Plaintiff alleges that
Ms. Warden singled out Plaintiff and subjected her to
discriminatory and harassing behavior on the basis of her
age, sex, race, and veteran status. Id. For example,
Plaintiff alleges that Ms. Warden refused to approve
Plaintiff's requests for overnight lodging when she
visited her clients in Maryland even though it was
Defendant's policy to approve overnight lodging requests
in such circumstances. Id. at ¶ 10. Plaintiff
also alleges that Ms. Warden attempted to trick her into
drinking an alcoholic beverage during a regional meeting in
Philadelphia despite the fact that Ms. Warden knew that
Plaintiff did not drink alcohol. Id. at ¶ 11.
Plaintiff further claims that Ms. Warden subtracted valuable
locations from Plaintiff's sales territory, giving the
locations to younger, non-black male and female
representatives who were not meeting their quotas and sales
goals. Id. at ¶ 12. According to Plaintiff, Ms.
Warden's discriminatory and harassing treatment affected
Plaintiff's rankings within the company by making it more
difficult to meet her quotas and sales goal, resulting in
reduced compensation as well as reduced opportunities to win
money, trips, and other achievement incentives. Id.
2011 or early 2012, Plaintiff alleges that she contacted
Sunovion's Human Resources Department to complain of Ms.
Warden's disparate and discriminatory treatment.
Id. at ¶ 13. Plaintiff also alleges that she
reported the disparate and discriminatory treatment through
Defendant's Ethics and Compliance Division on the
electronic office portal. Id. But, Plaintiff alleges
that Defendant failed to address her concerns. Id.
And, Plaintiff further alleges that Ms. Warden continued to
discriminate against her in many ways, such as by giving her
a performance review of “Partially Meets
Expectations.” Id. at ¶ 14. Plaintiff
contends that Ms. Warden's treatment of her and
Defendant's failure to address her complaints caused her
so much stress, depression, insomnia, and anxiety that she
had to go on disability leave from February to April of 2012.
after returning to work in the Spring of 2012, Plaintiff
filed an EEOC complaint regarding Ms. Warden's treatment
of her. After filing the EEOC complaint, Plaintiff alleges
that Ms. Warden was removed as her supervisor and transferred
to another section of Sunovion away from Plaintiff and was
not allowed to manage in locations where Plaintiff worked.
Id. at ¶ 15. As Ms. Warden was no longer her
supervisor, Plaintiff alleges that she did not further pursue
her EEOC complaint. Id.
Ms. Warden's removal as Plaintiff's supervisor,
Plaintiff alleges that she again began to receive good
evaluations and incentives for her work performance.
Id. at ¶ 16. However, in January 2016, Jennifer
Russell, a white female, became Plaintiff's supervisor.
Id. Plaintiff alleges that Ms. Russell was aware of
Plaintiff's race, sex, age, veteran status, disability,
and EEOC activity. Id. Plaintiff further alleges
that Ms. Russell had a personal and professional mentoring
relationship with Ms. Warden. Id.
claims that Ms. Russell immediately began to harass and
discriminate against her. Id. at ¶ 17. For
example, Plaintiff alleges that Ms. Russell wrongfully placed
Plaintiff on a Performance Improvement Plan and forced her to
create a Developmental Plan. Id. Plaintiff further
claims that Ms. Russell monitored Plaintiff's work emails
and computer usage and even attempted to monitor
Plaintiff's off-duty computer activity through social
media. Id. According to Plaintiff, Ms. Russell also
subtracted valuable locations from Plaintiff's sales
territory and gave her customers to other sales
representatives. Id. Plaintiff further alleges that
she was chastised for reaching out to senior-level executives
for guidance and mentoring. Id. at ¶ 20.
Plaintiff contends that other employees not of
Plaintiff's protected classes were not treated in these
ways. Id. at ¶ 17. Plaintiff argues that these
discriminatory and retaliatory acts diminished
Plaintiff's standing in the company and reduced her
chances to win money, trips, and other achievement
incentives, adversely affecting her compensation.
example of Ms. Russell's discriminatory and retaliatory
treatment, Plaintiff references a meeting in March 2016 at
which Ms. Russell gave meeting participants keys with designs
which she said described their personalities. Id. at
¶ 18. Ms. Russell gave Plaintiff a pink key with a
diamond-like stone with the word “Diva.”
Id. Plaintiff contends that the word
“Diva” is often used in a derogatory way to
“describe a Black women who is self absorbed and
difficult to deal with.” Id. Plaintiff further
contends that Ms. Russell acted in a similarly discriminatory
way to the only other black employee at the meeting,
disparaging him comparing him to a dancing leprechaun and to
a M&M candy. Id. Plaintiff contends that Ms.
Russell was playing on the “stereotype that Black
people like to eat and dance.” Id.
similar meeting a few months later, Plaintiff further alleges
that Chuck Rodgers, a white male Head of Sales, introduced a
bonus system which affected Plaintiff and the other black
employee adversely as compared to the other, non-black
employees. Id. at ¶ 19. According to Plaintiff,
the bonus system adversely affected her rate of pay and
opportunities for advancement, compensation, and other
another example, in June 2016,  the day before Plaintiff's
performance review, Plaintiff alleges that Ms. Russell told
her that she was “un-coachable and the worst person she
had ever coached in her entire history of coaching.”
Id. at ¶ 21. During that same conversation,
Plaintiff alleges that Ms. Russell attempted to get her fired
by demanding that Plaintiff check her phone while she was
driving a company car. Id. The next day, Ms. Russell
gave Plaintiff a performance review ranking her as
“Partially Meets Performance” and gave Plaintiff
a Performance Improvement Plan with 60 days to improve.
Id. When Plaintiff asked if being at 100% of quota
for both of her sales products would bring her into
compliance, Plaintiff alleges that Wolfgang Freund, Ms.
Russell's supervisor, told her, “No, because I am
not going to let my manager work with someone when we
don't know where she is coming from.” Id.
According to Plaintiff, this comment served as a constructive
discharge because “Mr. Freund was stating that there
was nothing that Plaintiff could [do] to come into
compliance.” Id. Plaintiff further alleges
that Ms. Russell refused to include Plaintiff's comments
or work examples in her Official Performance Review document.
Id. Plaintiff contends that the fact that she was
“singled out to receive a negative evaluation as a
result of not being at 100% of quota for two products was
evidence of discrimination against Plaintiff based on her
sex, race, age and disability, and evidence of retaliation
against Plaintiff for engaging in protected EEOC
August 2016, Plaintiff claims that she contacted
Defendant's Human Resources Department regarding her
Performance Review and other discriminatory and retaliatory
treatment. Id. at ¶ 22. Plaintiff claims that
she attempted to speak with two human resources
representatives but that neither addressed her concerns.
Id. Following her interactions with human resources,
Plaintiff “realized that her supervisors were
determined to continue to discriminate and retaliate against
her and force her to quit her job.” Id.
Additionally, Plaintiff contends that, due to discrimination
and retaliation, her stress-related symptoms returned, and
her doctor advised her that the resultant stress may lead to
a stroke or other health complications. Id. On
September 19, 2016, Plaintiff submitted her resignation which
became effective on October 1, 2016. Id.
November 1, 2016, Plaintiff filed a complaint with the EEOC
alleging discrimination and retaliation. And, on August 21,
2017, the EEOC issues Plaintiff notice of her right to sue.
Id. at ¶ 3. Plaintiff filed this lawsuit
against Defendant on November 11, 2017. See
generally Compl., ECF No. 1.
Dismissal Under Rule 12(b)(6)
Federal Rule of Civil Procedure Rule 12(b)(6), a party may
move to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint
[does not] suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint must contain
sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.